179 Iowa 814 | Iowa | 1917
This is an action in certiorari to review the action of the board of supervisors of Lee County in the location and establishment of a public highway. It is asserted that the board acted without jurisdiction and illegally. A petition for a writ of certiorari was presented to the district court of Lee County, writ issued, and the matter ordered transferred to the district court for hearing. The return made to the writ shows that, on the 1st day of February, 1909, there was delivered to the auditor of Lee County, at his office, a petition asking the establishment of a public highway commencing at the southeast corner of Section 1, Township 69 North, Range 7 West, Lee County, running thence north one mile, and terminating at the northeast corner of the same section. This petition was signed by Stephen Pollmiller, John Box, William J.
On the 2d day of February, 1909, a commission Avas prepared by the auditor, directed to M. E.. Bannon, appointing him commissioner to examine into the expediency of • establishing-the proposed road. This commission recited that he was appointed commissioner to examine into the expediency of establishing the road (describing it), and notified him to appear at the office, or at the office of some justice of the peace or notary public, and qualify according to law. The commission directed him to commence the examination of the road above described on the--
day of February, 1909, and if, in his judgment, the road was needed, or one in the vicinity of the one described, answering the same purpose, to proceed to lay out and mark the same according to law. He was then given full instructions as to how to proceed. The commission required him to report his doings in the premises at the auditor’s office between the 8th and 27th days of February, 1909.
It appears from the record that Bannon was not in the state at that time; that he did not appear at the office until the 27th day of February, 1909; that on that day he appeared, took the oath required of a commissioner, and the auditor wrote upon the commission extending the time to report until March 25, 1909, and delivered the commission to him. Thereafter, on the 25th day of March, Í909, the commissioner made his report in favor of establishing the highway as petitioned for. It further appears from the return that, on the 25th day of March, A. I). 1909, the following notice was issued, directed to Hartley, the plaintiff herein, Theresa Jacobsineier, Katherine and Theresa Poll-miller, to wit:
There is no complaint of the service of this notice on Hartley, the plaintiff, and Theresa Jacobsmeier. It is claimed, however, that the service ivas defective as to Katherine and Theresa Pollmiller. We will not set out the return as to these two, for the reason that, for the purposes of this ease, we may concede that the service was insufficient. This concession is made for the reason that, upon a hearing, before the board of supervisors which commenced on September 18, 1909, and continued and was not closed until October 25, 1909, Katherine and Theresa appeared before the board on October 15th, while the case was still pending, and waived all claim for damages, and requested that the road be established as reported by the commissioner. They therefore came into the case before its final disposition, and waived every right which they might have asserted had they been properly served with notice. It appears also that notice was duly published as required by statute, setting out the appointment of the commissioner,' a description of the road to be established, and that the commissioner had reported in favor of establishing a road 50 feet wide along the line petitioned for — in substance the same as the notice served on Hartley.
Before the commencement of the trial before the board, Hartley filed objections claiming that the highway, if established, would run through an orchard; that it would necessitate the removal of buildings; that there was no necessity for the establishment of the highway; thai the needs of the public did not require it; that it would be very costly to
“Resolved, by the board of supervisors of Lee County, Iowa, that a highway 50 feet wide, to wit: Commencing at the southeast corner of Section 1, Township 69 North, Range 7 West, running thence north one mile and terminating at the northeast corner of said Section 1, Township 69 North, Range 7 West, and between the points designated, and that the damages sustained by L. M. Hartley be assessed and placed at $500, and that said highway as described be, and the same is hereby, established upon payment, on or before the next regular session of said board, to be begun and holden at Ft. Madison, Iowa, on the 1st day of November, A. D. 1909, by said petitioners of the sum of $500 damages awarded to said L. M. Hartley, and the costs of this proceeding, taxed at $238.25, and- the said auditor is hereby ordered and instructed to notify the township clerks of Marion and Cedar Townships of the establishment of said highway upon payment of damages and costs, and that said proposed highway shall be opened for public travel within
On the 8d day of November, 1909, after said order had •been made of record, the board of supervisors, without further notice, made -the following order:
“Whereas, the board of supervisors of Lee County, Iowa, by resolution and order entered on the 25th day of ■October, 1909, granted the prayer of petitioners John Middendorf et ctl. for the establishment of a highway upon pay.ment 'of damages and- costs, and
“Whereas, said John Middendorf cl aZ.'have deposited the sum of $500 with the auditor of Lee County, Iowa, for payment of damages, and have paid the costs taxed at $238.25.
“Now, therefore, it is hereby ordered by the board of supervisors as aforesaid that the following described highway, to wit: Commencing at the southeast corner of Section 1, Township 69 North, Range 7 West, and running ■thence north one mile and terminating at the northeast corner of said Section 1, Township 69 North, Range 7 West, be, and the same is hereby opened as declared in said former resolution, and- the auditor of Lee County, Iowa, is hereby ordered to notify the clerks of Marion and Cedar Townships to that.effect, and that said road be opened for travel within 10 days from date of notifying said clerks.”
Upon • the return so made and oral testimony offered upon the trial, the district court, on the 15th day of July, 1912, affirmed the action of the board and dismissed the writ, and from this action of the court the appeal now under consideration is taken.
ord does not show that a petition was ever filed in the office of the auditor of the county, praying for the establishment of the road The contention is bottomed on the thought in. question.
Section 1484, Code, 1897, provides that any person desiring the establishment of a road shall file in the auditor’s office of the proper county a petition. Code Section 1485 provides that, before the filing of such petition, the auditor shall require the giving of a bond with sureties to be approved by him, conditioned that all expenses growing out of the application shall be paid by the obligors. Section 148(S, Code, provides that, when the foregoing requirements have been complied with, the auditor shall appoint some suitable and disinterested elector of the county as a commissioner to examine into the expediency of the proposed highway and report accordingly. Code Section 1494 provides that the time for the commissioner to commence the examination shall be fixed by the auditor, and, if he fails to commence or so report, the auditor may fix another day or extend the time for making such report, or may appoint another commissioner. Code Section Í495 provides that, within 20 days after the day is fixed by the auditor, a notice shall be served on each owner of land lying in the proposed road or abutting thereon, as shown by the transfer books in the auditor’s office, who resides in the county, in the manner provided for the service of original notices. If the owner of the land as thus shown does not reside in the county, similar notice shall be served upon any person who is in the actual occupancy of such land. In any case, notice shall be published for four weeks in some newspaper printed in the county. Section 1498, Code, provides that, if objections to the establishment of the road, or claims for damages, are filed, the further hearing of the application shall stand continued to the next session of the board held
As to the first objection,-that the petition was not filed because not marked filed, w;e have to say that we do not think that the word “file,” as used in the statute, is to be understood in that technical sense in which .it is used in courts of record. The petition is addressed to the board of supervisors, and is to be presented to them. Without presentation to the board, it becomes of no validity. The auditor is ex-officio clerk of the board. It is delivered to him for 'the purpose of présénting it to the board. When it is prepared and delivered to him for that purpose and he presents it to the board and the'board acts upon it, all that the statute contemplates by the word “file” has been aecomI>lished. We think there is nothing in this contention of the plaintiff’s.
5. highways : establishment: appraisers of damages: sufficiencynt: It is next contended that no lawful commission wras' ever issued to appraisers, and that the appraisers were not appointed xrx x x at the lime required by the statute. This involves a construction of Section 1499, Code, 1897, wdiich provides:
“Upon the expiration of the time for filing claims for damages, if any are filed, the auditor shall appoint three disinterested electors of the county as appraisers, to assess the amount of damages.”
The time for filing claims was extended to the 31st day of May, 1909. On the 1st day of June, 1909, these commissioners were appointed, and in the commission they were directed to appear on the 8th day of June, 1909, at the hour of 8 o’clock, and to proceed on the same day to perform the duties conferred upon them by the commission. On the 8th day of June, they proceeded to make examination and to
Section 1483, Code, 1897, provides:
“Roads hereafter established, unless otherwise fixed by the board, shall be at least 66 feet wide, and in no case less than 40.”
The power lay in the board to fix the width of the road at 66 feet, or at a lesser width; not less, however, than 40 feet. This petition was addressed to the board. The petition asked the board to do that which, under the law, it had a right to do. If the board had a right to establish a road less than 66 feet wide, it had a right to require its commissioner to ascertain the expediency of establishing a road at less than 66 feet. This was all that was done. The com
“No road shall be established through any * * * garden, orchard, or ornamental ground contiguous to any dwelling house, or so as to cause the removal of any building, without the consent of the owner.”
This contention presents a fact question that is in dispute in this case. A review of the evidence satisfies us, however, that neither of these contentions is good, upon the facts presented. What we consider the great preponderance of the evidence shows that there was no living orchard in the line of this road at the time the petition was filed, and the commissioner made his examination. ' The most that can be said is that, at some -time before that, there had been an orchard there, the stumps of which were remaining, and some old trees that were not productive. It appears that there had been an old road at this same line prior to this time, which, upon the petition of the plaintiff, had been vacated; that this old road was 60 feet wide; that there were hedges on either side for considerable distance. There was an orchard west of the proposed liighj way. The evidence shows that there were no living fruit trees in the line of the proposed highway in February of
“A field once used as an orchard, but in which most of the trees are dead and none bear fruit, is not an ‘orchard’, within the meaning of the statute forbidding the opening of a road through an orchard.”
As to the building claimed to be in the line of the proposed highway, the records disclose that the building was a shed, constructed by (he plaintiff on the line of the highway, on the 22d day of February, 1909, or 3 weeks after the petition was filed; that the building was so constructed that it was blown down soon afterwards, and was rebuilt by the plaintiff about the last of May. This building was %. of a mile from plaintiff’s home. The building had three sides and a roof. It was a cheap building, built of old bridge lumber. There were no holes dug for the posts, and no foundation under it. Plaintiff claims that, when he built this building, he did not know that the petition had been filed asking the establishment of a road in the line. It appears, however, that the fact of filing the petition, the fact that an effort was made to establish the road on the line, was .of general talk in the neighborhood. It does not appear why this building was constructed — what useful purpose it served the plaintiff at the point,where constructed. It was a temporary affair, blew down, and was erected after the plaintiff had full notice, not only of the filing of the petition, but of the action of the commissioner. We think that buildings of this character, constructed under the circumstances under which this building was constructed, are not within the protection of the statute. It clearly appears that the building was erected after the petition was filed, and the circumstances indicate that plaintiff must have
Some other matters are discussed in argument, but we think that what we have said disposes of the only matters alleged in argument which call for attention. Upon* the whole record, we think the action of the district court was right, and it is therefore — Affirmed.